In the digital age, it has become second nature to color our digital profiles with the products we use and the brands we like. That goes for everything from our favorite music to our favorite cereal.
But could downloading a 75-cent coupon result in you forfeiting rights to sue if you later become harmed by that product?
Our Cape Coral product liability attorneys understand that an increasing number of firms, from pancake mix manufacturers to cell phone companies, have begun including language in the fine print indicating that by “liking” a product, you are “joining” a community that in turn requires those individuals to resolve disputes in forced arbitration.
Consumer advocates have expressed outrage, indicating that such language is an effort to shield a firm from accountability, even in cases where the company lied about the safety of its product or when an employee intentionally contaminates the product and causes harm.
Numerous companies have adopted similar policy language following the 2011 U.S. Supreme Court decision in AT&T Mobility v. Concepcion. That ruling essentially allowed business to avoid class-action litigation by using standard-form contracts that require dispute resolution through arbitration and that claims be brought individually.
This decision heavily favors businesses, and reversed an earlier California Supreme Court ruling that barred such forced arbitration agreements, deeming them “unconscionable.”
Some other examples include a burger chain that has posted a sign on the door, indicating that by entering the premises, customers agree to settle all disputes via arbitration.
Big food companies have been sued a number of times over the last decade in class actions, with complaints alleging mislabeling, contamination and other issues that have resulted in serious injury and even death.
General Mills last year paid nearly $9 million to settle claims that it inflated the health benefits of its yogurt on the packaging, and agreed to remove the name of a fruit from the packaging of a product that did not contain that fruit. Another pending case challenges the use of the word “natural” in a certain brand of granola bars that in fact contain genetically-engineered and processed ingredients.
The company says that purchasing a product or downloading a coupon establishes grounds for the new policy. While the agreement can’t bar a consumer from pursing a claim, it would dictate the forum in which a claim can legally be filed. Arbitration is generally seen as a more favorable alternative to courts as far as businesses are concerned.
But can a company force arbitration without a consumer signing anything?
Legally, the company would most likely have to prove the consumer knew about the policy in order to enforce an arbitration order. Many of these “agreements” are included in fine print and include language that may be deemed overly-broad by the courts.
For example, the Times reported that online orders placed after the implementation of the new policy gave no indication to the buyer of a change in legal terms and conditions.
In the meantime, customers should pay attention to the fine print, and be judicious about the products they “like” online.
If you have been injured by a defective product, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
When “Liking” a Brand Online Voids the Right to Sue, April 16, 2014, By Stephanie Strom, The New York Times
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Loomis v. Wing Enterprises – Expert Testimony in Product Liability Suit, July 16, 2014, Fort Myers Product Liability Lawyer Blog